Connecticut is poised to finally do something about the epidemic of sexual assault on college campuses. The legislature needs to see this through, because more than just the safety of the next generation of students is at stake.
The Higher Education and Employment Committee approved a bill this week requiring “affirmative consent” as the standard for sexual consent at state universities and colleges. Here, from the bill, is the definition of affirmative consent:
“‘Affirmative consent’ means an active, informed, unambiguous and voluntary agreement by a person to engage in sexual activity with another person that is sustained throughout the sexual activity and may be revoked at any time by any person.
Basically, affirmative consent means that consent has to be consistently clear and active, and it can be withdrawn at any time.
This is a dramatic shift from the somewhat fuzzy legal definition of “consent” that exists now. Currently, in sexual assault cases the burden is far more on accusers to demonstrate that they did not give consent; this new law would shift the burden to the accused.
On the face of it this seems like a great thing to do. For a very, very long time victims were the ones who had to prove consent wasn’t given, or that it was withdrawn. Since consent is not always an exactly defined concept, and varies from state to state, that could often be very difficult. Not long ago many jurisdictions took into account how hard a victim struggled or tried to resist, for instance, not taking into account victims who may have feared for their jobs, their safety, or even their lives unless they went along quietly. Victims could expect excruciating examination of their personal habits, what they were wearing, and their character. For young women of color, this reality is even more bleak.
It’s not surprising, then, that victims don’t come forward. In fact, only 32 out of every 100 rapes is even reported to police, and of those, only two will result in a conviction. The reporting rate on college campuses is even lower.
Affirmative consent has long been championed by feminists as a way to try and fix this heartbreaking reality, and it’s starting to catch on. It’s been in effect in California’s colleges and universities since last year, and nationwide in Canada since the 1990s.
There’s been pushback, of course. Arguments against affirmative consent range from the well-intentioned to the patently ridiculous — but they almost all focus on the impact the law may have on those who could potentially find themselves on the wrong side of it.
There are more serious arguments, though, that frame this law as both an attack on liberty and the principle of innocent until proven guilty. Because the burden of proof is placed far more on the accused than the accuser, the case could be made that any legal proceeding would start with a presumption of guilt.
And, of course, what about the poor young person who is falsely accused? Wouldn’t it be incredibly difficult to prove whether consent was really given during a trial?
But this has been true for victims for too long, and that is a deep injustice. Also, despite toxic popular narratives of lying women and traps laid for unsuspecting men, false accusations of rape and sexual assault happen about as often as false accusations for other crimes — that is to say, not very often.
That particular nasty, persistent lie about false accusations is yet another reason we need this law. That mentality comes from something feminists call “rape culture,” which is essentially the culture that enables the normalization of sexual violence against women. Rape culture shields perpetrators by both keeping actual victims afraid to come forward and making life miserable for those who do. Sadly, rape culture is a particular problem at college campuses, as a 2013 complaint against the University of Connecticut made sickeningly clear.
I understand arguments about due process and the difficulty of enforcement and defense. But hopefully clear definitions and thorough investigations will mitigate those concerns, which I believe are outweighed in any case by the urgent necessity of this bill. Affirmative consent in our colleges is the right response to a persistent injustice, and if it’s passed, it could both empower victims and help dismantle the culture that has so long kept them in the shadows.
Susan Bigelow is an award-winning columnist and the founder of CTLocalPolitics. She lives in Enfield with her wife and their cats.
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